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Compliance With Supreme Court Directives
Compliance With Supreme Court Directives
Compliance With Supreme Court Directives
Commonwealth Human Rights Initiative (CHRI) B-117 (First Floor), Sarvodaya Enclave New Delhi 110 017, INDIA Tel.: +91-11-26864678, 26528152 Fax: +91-11-26864688 E-mail: info@humanrightsinitiative.org Website: www. humanrightsinitiative.org
TABLE OF CONTENTS
Background
Part I: Functional autonomy 1. 2. 3. 4. 5. State Security Commission Director General of Police Minimum tenure for other police officers Police Establishment Board National Security Commission
5 6 9 10 11 12
Part II: Accountability 6. 7. Police Complaints Authority Separation of investigation and law and order police
13 14 16 17 19
BACKGROUND
The purpose of this briefing note is to present the Supreme Courts seven directives on police reform in detail, the rationale behind them, and the way they can best be complied with by state governments. CHRI was both an intervener in the Prakash Singh case and closely associated with the Sorabjee Committee that drafted a Model Police Act, which can assist state governments in taking effective steps toward compliance.
After decades of public pressure, lack of political will and continued poor policing, a police reform process is finally underway in India. On 22 September 2006, the Supreme Court delivered a historic judgment in Prakash Singh and Others vs. Union of India and Others instructing central and state governments to comply with a set of seven directives laying down practical mechanisms to kick-start reform. The archaic Police Act of 1861 continues to govern policing in India, despite far reaching changes in governance and Indias transition from a colonised nation to a sovereign republic. As policing is a state subject under the Constitution, states must enact their own Police Acts but most states have chosen to adopt the 1861 Act. Some states have enacted their own Acts but even these closely resemble the 1861 Act. This Act and the kind of policing culture that has been allowed to flourish in independent India, have led to countless abuses by police officers. The need for police reform has been acknowledged by successive governments. Since 1979, a number of commissions and committees have been set up by the central government to suggest ways to reform the police. Yet, the recommendations of these bodies have not been implemented and their reports have largely been ignored. Ten years ago, two former Director Generals of Police requested the Supreme Court to direct central and state governments to adopt a set of measures to address the most glaring gaps and bad practice in the functioning of the police. The petitioners based their recommendations on the findings of the various police reform commissions and committees. Given the gravity of the problem and total uncertainty as to when police reforms would be introduced, the Supreme Court considered that it could not further wait for governments to take suitable steps for police reforms and had to issue appropriate directions for immediate compliance. These directions are binding upon central and state governments until they frame appropriate legislations. In October 2005, as the Supreme Court was considering the matter, the central government set up a Police Act Drafting Committee (PADC) commonly know as the Soli Sorabjee Committee tasked to draft a new model Police Act. The PADC was mandated to take into account the changing role and responsibilities of the police and the challenges before it and draft a model act that could guide states while adopting their own legislation. The constitution of the PADC was prompted by the Prime Ministers concern expressed at the Conference of District Superintendents of Police in early 2005 that: We need to ensure that police forces at all levels, and even more so at the grassroots, change from a feudal force to a democratic service. Very shortly after the Supreme Court delivered its judgment, the PADC submitted its Model Police Act, 2006 to the Home Minister1. The Model Police Act complements the Supreme Court judgment in that it provides the detailed nuts and bolts through which the directions of the Supreme Court can be most effectively implemented. The final version of the Model Police Act (the Model Police Act) is available on the website of the Ministry of Home Affairs at http://mha.nic.in/padc/The%20Model%20Act,%202006%2030%20Oct.pdf. This paper will closely examine all of the seven directives and will refer to specific provisions of the Model Police Act which are most relevant for implementation.
The Supreme Court required all governments, at centre and state levels, to comply with the seven directives by 31st December 2006 and to file affidavits of compliance by the 3rd of January 2007. A hearing before the Supreme Court was held on 11 January 2007. State responses varied tremendously ranging from complying with a number of directives through executive orders to strongly objecting to the directives. A significant number of states requested the Court to grant them more time to comply with the directives. After listening to the oral arguments of more than ten counsels, the three-member bench passed a strict order, casting away the objections raised by the states. The Supreme Court stated that there could be no review of its 22nd September judgment and that it needs to be complied with as it is. Regarding the timing for compliance: 1. The Supreme Court ordered that all three self-executing directives must be complied with immediately through executive orders: Insofar as these three directions are concerned, they are self-executory and no question of grant of further time, therefore arises. Whatever steps have to be taken should be taken forthwith and, in any case, not later than four weeks from today. The Supreme Court granted an extension of three months to comply with the four other directives, which require more thorough considerations to be implemented. These directives must be complied with no later than 31st March 2007. States must file affidavits of compliance by 10 April 2007.
2.
The directives can be broadly divided into two categories: those seeking to achieve functional autonomy for the police (Part I) and those seeking to enhance police accountability (Part II).
Policing is an essential public service and it is the duty of every state to provide its people with the best police service possible. Good policing is what the public wants but does not have. Good policing is policing that protects everyones person, property and rights. Good policing is designed to work in an impartial and efficient manner for the benefit of all, and not meant to be in service of just the elite few. In order to function even-handedly and in service of all, the police must be able to do their work free from extraneous pressures while at the same time being accountable in various forums for individual actions, overall performance and any misdeed. This requires that the police be given clear direction and role, and then be allowed to perform without fear or favour. Since it is the States duty to ensure the safety and security of all its peoples, good policing also requires that the political executives role be carefully defined so that it can direct the outcomes of policing without interfering unduly in its institutional and operational functioning. In India today, illegitimate political interference in policing is routine. Some trends include manipulating police recruitment, promotion and transfer practices to suit political purposes, bringing political elements into crime control and investigation, or using the strong hand of the police to endanger communal harmony in the worst cases. The result is intense public dissatisfaction and a demonstrable deterioration in safety and security. This needs to change. Yet, there is a danger that too much autonomy can lead to blatant abuse of power, while too little can create a police that is pliant to the political/partisan interests of a powerful few. Across the world, best practices have created mechanisms by which greatest police effectiveness is ensured through maintaining a delicate balance between functional or operational autonomy and oversight of the police by the political executive. Best practices are designed to ensure that operational autonomy is coupled with strengthened accountability while overall oversight is retained by the political executive. This results in effective, efficient and responsive policing that works within constitutional norms. A majority of the Supreme Courts directives seek to address these endemic problems of over and under control and strike the balance that will provide the people of India with reformed policing. The details of the related directives are explained below.
The Sorabjee Committee model is the most suitable as it provides for the greatest number of nonpolitical members. Their membership provides a direct entry point for the voice of the public in policing and allows the State Security Commission to have a diverse and balanced composition. In addition to the Chair and the Secretary, the Model Police Act provides for the following composition2: (a) Leader of the Opposition in the state assembly (b) Retired High Court Judge nominated by the Chief Justice of the High Court (c) Home Secretary3 (d) Five non-political persons of proven reputation for integrity and competence from the fields of academia, law, public administration, media or non-government organisations to be appointed on the recommendation of a Selection Panel composed of:
The Model Police Act refers to the State Security Commission as the State Police Board. See Chapter V: Superintendence and Administration of Police, Section 42, page 31. 3 The Supreme Court judgment does not mention the retired High Court Judge and the Home Secretary as part of the model suggested by the Soli Sorabjee Committee as they were not included in the draft Model Police Act at the time the judgment was delivered. However, the final Model Police Act does include both of them.
1 2
(i) A retired Chief Justice of a High Court to be nominated by the Chief Justice of the High Court; (ii) The Chairperson of the State Human Rights Commission; in the absence of a state Commission, a person nominated by the Chairperson of the National Human Rights Commission; and (iii) The Chairperson of the State Public Service Commission. Functions The functions of the State Security Commission are to: !" !" Ensure that the state government does not exercise unwarranted influence or pressure on the police. Lay down broad policy guidelines. The Model Police Act provides that these policy guidelines are aimed at promoting efficient, effective, responsive and accountable policing, in accordance with the law5. Give directions6 for the performance of the preventive tasks and service oriented functions7 of the police. Evaluate the performance of the state police and prepare a report on police performance to be placed before the state legislature.
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The Model Police Act provides a very useful template with regard to the performance evaluation function of the State Security Commission. It states that the Commission should first identify objective indicators against which police performance will be evaluated. These indicators include: operational efficiency, public satisfaction, victim gratification vis--vis police investigation and response, accountability, optimum utilisation of resources, and observance of human rights standards.8 The Model Police Act states that the State Security Commission will review and evaluate organisational performance of the police service in the state as a whole, as well as district-wise against (i) the Annual Policing Plan9, (ii) performance indicators as described above, and (iii) resources available and constraints of the police.10 The Model Act sets out that the state government may establish an Inspectorate of Performance Evaluation to assist the State Security Commission in its task of performance evaluation. This Inspectorate would be headed by a retired police officer of the rank of Director General of Police, who would be assisted by the following categories of staff: serving or retired police officers, social scientists, police academics and crime statisticians.11 At present, there is no well-established system of performance evaluation. Within the police hierarchy, the commonly used parameters for assessing performance are crime and preventive measures statistics. Judging police performance mainly on the basis of increase or decrease in crime statistics, is wholly inadequate. It has given rise to the practice of burking or refusing to record and investigate crime, failing to give a true picture of police
5
Without specifying the scope and nature of the directions, there is a risk that Security Commissions could unnecessarily tread on police operational decision-making. 7 This terminology is borrowed from the Second Report of the National Police Commission which had divided police tasks into three categories: (i) investigative; (ii) preventive; and (iii) service oriented. Preventive tasks include preventive arrests, arrangement of beats and patrols, deployment of police force as a preventive measure when breach of peace is threatened, etc. Service-oriented functions include rendering service of a general nature and providing relief to people in distress. 8 See Chapter XIII: Police Accountability, Section 181 (1) (a), page 93. 9 The Model Police Act provides that the state government, in consultation with the State Police Board, must prepare a three year Strategic Policing Plan identifying the objectives of policing to be achieved during the period, and setting out an action plan for their implementation. The government is also expected to prepare an Annual Policing Plan, prioritising the goals of the Strategic Plan for the year in question. See Chapter V: Superintendence and Administration of Police, Section 40, page 30. 10 See Chapter XIII: Police Accountability, Section 181 (1) (b), page 93. 11 See Chapter XIII: Police Accountability, Section 181 (2), page 93.
6
See Chapter V: Superintendence and Administration of Police, Section 48 (a), page 34.
response and performance. The new system aims at providing consistent and holistic evaluation of the police as an organisation, which is key to shaping effective policing. The use of such systems to drive improvements is being promoted in many Commonwealth police organisations, although as a relatively recent phenomenon. This looks at the police in terms of the results they deliver. It is increasingly becoming a key factor in police reform programmes: sometimes simply as an internal management tool, and sometimes, by publishing performance data, as a means of shaming underperformers into improvement. For India, the heavy investment in information technology and other sophisticated technologies required to replicate these systems could be difficult. Nevertheless, the principles on which they are based transparency, a relentless focus on key results, and a willingness to reward and punish for good and poor performance respectively can be transplanted to less resourced areas and are critical to police accountability. If truly given the necessary independence, State Security Commissions can act as strong buffer bodies between politicians and the police. There are several best-practice examples of this kind of body in the Commonwealth. Variously named and with differing mandates and composition, these bodies have all been created with a view to insulating the police from unwarranted influence, through policy guidance, public input, and objective evaluation of police organisation. For instance, Nigerias Police Service Commission is one of the most potentially powerful new Commissions in the world. Established in 2001, much of its value derives from its wide and representative membership, which includes women, human rights advocates, representatives of business, the media, as well as a retired Justice of the Superior Court. In Northern Ireland, during the 30-year internal conflict, the police was a puppet of the Ministry of Home Affairs and blatantly partisan. Developed in response to this long history of conflict, Northern Ireland's Policing Board is responsible for delivering an efficient and impartial police service. Like the envisaged Security Commissions, the Board has a significant "policy-making" role and cannot interfere in police operational matters. Illustratively, for the Board, policy guidance to the police involves setting objectives and targets for police performance and monitoring progress against these, monitoring trends and patterns in crimes committed in Northern Ireland, facilitating public-police cooperation to prevent crime, and providing policing advice. These broad policy areas direct policing to focus on the public's concerns and safety needs. In India, this type of pro-active, participatory policy-making is sorely absent, rendering policing purely reactive. The Security Commissions, if well staffed and equipped, can fill this gap.
Minimum Tenure Once objectively chosen, the DGP is assumed to enjoy the trust of the political executive, the police service and the public. It would be anomalous to retain the ability of the executive to remove the head of police at will. The Supreme Court provides for a minimum tenure of two years for the DGP. In practice, this does not mean that erring DGPs cannot be removed, it only makes removal consequent on laid-down grounds in law: An action taken against her/him under the Discipline and Appeal section of the All India Services Rules; A conviction in a court of law for a criminal offence or a case of corruption; or Being otherwise incapacitated from discharging duties.
12
See Chapter II: Constitution and organisation of the Police Service, Section 6 (2), page 8.
Besides cases of promotion or retirement, premature removal of the above-mentioned officers will be possible only consequent upon: Disciplinary proceedings; Conviction for a criminal offence or a case of corruption; or Being otherwise incapacitated from discharging duties.
In addition to the above-mentioned grounds given by the Supreme Court, the Model Police Act suggests in exceptional cases, officers may also be removed before the expiry of tenure for (i) gross inefficiency and negligence; or (ii) where a prima facie case of a serious nature is established after a preliminary enquiry.13 When an officer is removed under these exceptional cases, the Model Police Act sets out two types of safeguards: (i) the authority which orders the transfer must inform the next higher authority and the Director General of Police of the grounds for the premature transfer in writing and (ii) the aggrieved officer may approach the Police Establishment Board (see section 4 below) to submit a representation against his/her premature removal. The Board shall consider the merits of the case and make appropriate recommendations to the transferring authority.
13
See Chapter II: Constitution and organisation of the Police Service, Section 13 (2), page 13.
10
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14
Bruce, D. and Nield, R. (2005) The Police That We Want: A Handbook for oversight of police in South Africa, Centre for the Study of Violence and Reconciliation, Open Society Foundation for South Africa and the Open Society Justice Initiative, page 24. 15 The Model Police Act refers to the Police Establishment Board as the Police Establishment Committee. 16 See Chapter V: Superintendence and Administration of Police, Section 53 (1), page 36.
11
Secretary: Union Home Secretary Members: Heads of the Central Police Organisations (CPOs) and security experts
The CPOs can be divided in two groups: the armed police organisations, known as the Central Para-Military Forces (CPMF)17, and the other central police organisations18. The Supreme Court does not specify whether it refers to the CPMF, to the other central police organisations or to both. However, when describing the National Security Commisions functions, the Court does refer to the CPOs as forces which seems to indicate that only the CPMF are covered. Functions The National Security Commission will have the following functions: !" !" !" !" !" Prepare a panel for the selection and placement of Chiefs of the CPOs, who should be given a minimum tenure of two years; Review measures to upgrade the effectiveness of the CPOs; Improve the service conditions of CPO personnel; Ensure that there is proper coordination between the different forces; and Ensure that the forces are utilised for the purposes they were created.
The Commission will also have the power to make recommendations with regards to the above.
17
CPMFs include the Assam Rifles, the Border Security Force, the Central Industrial Security Force, the Central Reserve Police Force, the Indo-Tibetan Border Police and the National Security Guards. 18 Other central police organisations include the Bureau of Police Research and Development (BPR&D), the Central Bureau of Investigation (CBI), the Directorate of Coordination of Police Wireless (DCPW), the Intelligence Bureau (IB), the National Crime Records Bureau (NCRB), the National Institute of Criminology and Forensic Science (NICFS), and the National Police Academy (NPA).
12
13
Function The role of the Police Complaints Authority at the state level will be to inquire into cases of misconduct by police officers of and above the rank of Superintendent of Police in cases of serious misconduct, which includes incidents involving (i) death, (ii) grievous hurt, or (iii) rape in police custody.
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b) District level Composition Chair: Retired District Judge to be chosen by the state government out of a panel of names proposed by the Chief Justice of the High Court or a High Court Judge nominated by him or her.
Other members: Three to five members selected according to the same process as members of the state level Police Complaints Authority (see above).
Function The role of the Police Complaints Authority at the district level will be to inquire into cases of misconduct by police officers of and up to the rank of Deputy Superintendent of Police in cases of serious misconduct, which includes incidents involving: (i) (ii) (iii) (iv) (v) (vi) Death; Grievous hurt; Rape in police custody; Extortion; Land/house grabbing; and Any incident involving serious abuse of authority.
The Supreme Court has provided for a number of features common to state and district level Police Complaints Authorities: Membership in the authority must be a full time occupation The members of the authority should be provided suitable remuneration The members of the authority can use the assistance of regular staff to conduct field inquiries. Such staff can be composed of retired investigators from the Criminal Investigation Department, Intelligence, Vigilance or any other organisation. The recommendations of the authority for any action, both disciplinary and criminal, shall be binding. In practice, this implies that the inquiry conducted by the Complaints Authority replaces the internal disciplinary inquiry. Once the inquiry is completed, the Complaints Authority can recommend a suitable disciplinary punishment to the appointing authority, which will be bound by it. The Complaints Authority can also recommend the registration of a FIR against the erring police officer.
It is essential to prevent police complaints authorities from being vulnerable to capture and expedience. The following factors are key to increase the likelihood of their becoming effective specialised monitors of police actions: !" !" !" !" !" Independence of members; Capacity building of members and staff, in particular with regards to investigative skills and techniques; Adequate funding and infrastructure; Cooperation between complaints authorities and the police department; and Proper coordination between human rights commissions and police complaints authorities and sharing of expertise and experiences.
15
19
See Chapter X: Effective Crime Investigation, Including use of Science and Technology in Investigation, pages 67-70.
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STATE RESPONSES
The Supreme Court required all governments, at centre and state levels, to comply with the seven directives by 31st December 2006 and to file affidavits of compliance by the 3rd of January 2007. Responses to the judgment vary tremendously from one state to another. Based on the affidavits, their positions are as follows20: !" A number of states have fully or partially complied with the Supreme Court directives through executive orders: Sikkim (full compliance, is also drafting a new Police Bill) Jharkhand (compliance with some of the directives, wishes to comply with the other directives with some modifications) Manipur (compliance with some modifications, established a police complaints authority only in the West District of Imphal) Meghalaya (compliance with the directives, sought guidance from the central government regarding one of the functions of the Establishment Board, is finalising the constitution of a district level police complaints authority) Mizoram (compliance with four directives, requests to establish only one Police Complaints Authority for the entire state that would be headed by an IAS or IPS officer) Tripura (partial compliance with two directives, is also drafting a new Police Bill to comply with the four other directives) Uttarakhand (compliance with two directives, established a state level Police Complaints Authority, requested an extension to set up the State Security Commission)
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A number of states requested an extension to file their affidavits as they are in the process of drafting a new Police Bill: Bihar (sought an extension of four months) Himachal Pradesh (is drafting a new police bill based on the Model Police Act) Rajasthan (a bill will be brought before the legislature at the end of February or the beginning of March 2007) West Bengal (a bill will be brought before the legislature in April 2007)
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A number of states requested an extension to file their affidavits without further details as to how they will comply with the judgment: Assam (sought six months extension) Chhattisgarh (sought six months extension, is also drafting a new Police Bill) Goa (sought two weeks extension) Jammu and Kashmir (did not specify any specific extension period) Madhya Pradesh (sought one to three months extension) Maharashtra (sought one month extension) Orissa (sought six months extension)
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Andhra Pradesh, Gujarat and Uttar Pradesh expressed strong objections to almost all the directives and requested the Supreme Court to reconsider them. Karnataka (which is also drafting a new Police Bill) objected to the creation of a State Security Commission and a Police Complaints Authority. Nagaland (which is also drafting a new Police Bill) stated that all the directives need to be re-examined in light of its special context.
20
A number of states are missing from this list since CHRI has not yet been able to obtain their affidavits.
17
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The Central Government is reviewing the Model Police Act with a view to adopting new legislation applicable to the Union Territories in the current year. It has also set up a National Security Commission with a modified membership (called the Committee on National Security and Central Police Personnel Welfare) but expressed reservations with regard to some of the functions assigned to this body by the Supreme Court. It sought three months extension from the Court to finalise the matter. Most Union Territories stated in their affidavits that: (i) the Model Police Act is under close examination by the Ministry of Home Affairs and that once a new Police Act is framed for the Union Territories, it will cover most of the Supreme Courts directives, (ii) given the size and specificities of Union Territories, adjustments need to be made to some of the directives, and (iii) they have or will partially comply with the judgment.
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A hearing before the Supreme Court was held on 11 January 2007 to monitor compliance. After listening to the oral arguments of more than ten counsels, the three member bench passed a strict order, casting away the objections raised by the states. The Supreme Court stated that there could be no review of its 22nd September judgment and that it needs to be complied with as it is. Regarding the timing for compliance: The Supreme Court ordered that all self-executing directives (i.e. appointment and security of tenure of the Director General of Police, security of tenure of other police officers, constitution of a Police Establishment Board) must be complied with immediately through executive orders: Insofar as these three directions are concerned, they are self-executory and no question of grant of further time, therefore arises. Whatever steps have to be taken should be taken forthwith and, in any case, not later than four weeks from today. The Supreme Court granted an extension of three months to comply with the four other directives (i.e. constitution of a State Security Commission, constitution of a Public Complaints Authority, separation of investigation and law and order police and constitution of a National Security Commission), which require more thorough considerations to be implemented. These directives must be complied with no later than 31st March 2007. States must file affidavits of compliance by 10 April 2007.
In addition, the Court stated that elections in a state are not a valid ground for non-compliance with the directives in the time-frame mentioned above. The coming months are crucial for the future of police reform in India. The Supreme Court judgment and the Model Police Act provide state governments with a unique opportunity to commit to reform. What is now required is strong political will to ensure that compliance with the Courts directives brings about long-lasting reform and not only cosmetic changes.
For more information contact: Commonwealth Human Rights Initiative (CHRI) B-117 (First Floor), Sarvodaya Enclave New Delhi 110017 INDIA Tel: + 91 -11- 26528152, 26850523 Fax: + 91-11- 26864688 Website: www.humanrightsinitiative.org CHRI Access to Justice Programme: Ms. Swati Mehta Email: swati@humanrightsinitiative.org Additional information on the judgment can be found at: http://www.humanrightsinitiative.org/programs/aj/police/india/initiatives/writ_petition.htm
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RANK
Director General of Police (DGP)
RESPONSIBILITY
STATE POLICE Officers drawn from the INDIAN POLICE SERVICE (IPS) = GAZETTED RANKS Additional Director General of Police (Addl. DGP)
DISTRICT
Assistant Superintendent of Police (ASP) Officers drawn from the STATE POLICE SERVICE = NON-GAZETTED RANKS Deputy Superintendent of Police (Dy. SP) SUB-DIVISION IN A DISTRICT
Police Constable